What is indecency with a child under PC § 21.11?
Texas Penal Code § 21.11 criminalizes two distinct prongs: indecency by contact (a 2nd-degree felony) and indecency by exposure (a 3rd-degree felony). Both require a complainant under 17 and the defendant's intent to arouse or gratify sexual desire.
- Complainant under 17
- The complainant must be younger than 17 years of age at the time of the conduct — the statute applies to "a child," defined under § 21.11(c) as a person younger than 17. Age is not an element open to mistake-of-fact defense: § 21.11(a) imposes strict liability on the age element. The defendant's belief that the complainant was older is not a defense to the age element itself (though it can support the Romeo-and-Juliet affirmative defense at § 21.11(b) if its other prongs are met).
- Sexual contact OR exposure
- The contact prong (§ 21.11(a)(1)) requires "sexual contact" as defined at § 21.01(2) — touching the anus, breast, or genitals of another, or causing such a touching. The exposure prong (§ 21.11(a)(2)) requires the defendant to expose the actor's anus or genitals, or to cause the child to expose theirs. The two prongs are mutually exclusive in charging but can be alleged in the alternative.
- Intent to arouse or gratify
- Both prongs require the State to prove the defendant acted with intent to arouse or gratify the sexual desire of any person. This mental-state element is the most heavily litigated component. Texas case law — McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981), and progeny — permits jurors to infer intent from the conduct, surrounding circumstances, and relationship of the parties, but the State still bears the burden of proof beyond reasonable doubt.
- Knowledge of presence (exposure prong)
- For the exposure prong only, § 21.11(a)(2) additionally requires that the defendant knew the child was present. Accidental exposure where the actor was unaware of the child's presence does not satisfy the element. Defense counsel litigates the State's evidence of knowledge — was the child in the room, behind a door, on a video call — and what the defendant actually perceived at the moment of the alleged exposure.
Beyond the four elements, the chapter's structural rule — that § 21.11 is the lesser charge bracket for non-penetrative child sexual conduct — means it can serve as a lesser-included offense to sexual assault of a child under § 22.011(a)(2) or aggravated sexual assault under § 22.021(a)(2)(B). This matters for jury-charge strategy: when the State overcharges (alleging sexual assault when the conduct described would more naturally fall under § 21.11), the defense can request a lesser-included instruction. Conversely, the State sometimes downgrades a sexual-assault prosecution to indecency in plea negotiation, particularly where the complainant's testimony on penetration is weak but the State has strong corroboration on contact.
Two prongs, two cases — contact vs exposure
Indecency by contact is a 2nd-degree felony (2-20 years) with lifetime sex-offender registration. Indecency by exposure is a 3rd-degree felony (2-10 years) with 10-year registration. The two prongs are factually and legally distinct.
The contact prong under § 21.11(a)(1) requires a physical touching of an enumerated body part — the anus, breast, or any part of the genitals. Clothing does not break the element: Resnick v. State, 574 S.W.2d 558 (Tex. Crim. App. 1978), held that touching over clothing satisfies the statute as long as the intent-to-arouse element is met. The State will frequently allege multiple acts in a single indictment, with each act constituting a separate count — meaning a single accusation can produce stacking exposure across multiple counts of the same complainant, each subject to the 2-to-20-year range.
The exposure prong under § 21.11(a)(2) does not require touching. The defendant either exposes the defendant's own genitals or anus, or causes the child to expose theirs, with the same intent-to-arouse element. Knowledge of the child's presence is an additional element on the exposure prong — § 21.11(a)(2) requires the State to prove the defendant knew the child was present. This knowledge requirement is a critical defense lever where the alleged exposure occurred in a private home, in a partly-public setting, or via electronic transmission (video chat, social media, photo sharing).
The felony grading is the most consequential difference. Contact (2nd-degree) carries 2-20 years TDCJ and a $10,000 fine ceiling. Exposure (3rd-degree) carries 2-10 years and the same $10,000 ceiling. Beyond the punishment range, the registration consequences diverge sharply: contact triggers lifetime sex-offender registration under CCP Chapter 62; exposure triggers a 10-year post-supervision registration period. The civil-liability and collateral-consequence landscape — employment, housing, professional licensing, family-court custody outcomes — tracks the registration tier.
Negotiating between the two prongs is a significant defense lever. Where the State has charged contact but the evidence of touching is weak (or where the State has charged exposure but the contact theory might be stronger), a reduction or amendment between prongs may produce a substantially better outcome — particularly where the registration tier difference matters more to the client than the headline charge label. Skilled negotiation focuses on what the State can actually prove at trial, not what the indictment alleges.
Penalty range and registration consequences
Indecency with a child by contact: 2-20 years TDCJ + $10,000 fine + lifetime registration. By exposure: 2-10 years + $10,000 + 10-year registration. Both are 3g aggravated offenses restricting community supervision.
Indecency with a child by contact is a 2nd-degree felony under § 21.11(d), punishable by 2 to 20 years in the Texas Department of Criminal Justice (TDCJ) plus a fine up to $10,000 under § 12.33.[1] Indecency by exposure is a 3rd-degree felony with the range set by § 12.34 at 2 to 10 years TDCJ and the same fine ceiling.[2] Both prongs are subject to the chapter's strict-liability age element, meaning prosecutors do not need to prove the defendant's knowledge of the complainant's age.
The 3g aggravated-offense designation under Code Crim. Proc. art. 42A.054 substantially restricts community supervision. A judge cannot order regular community supervision (probation) on a 3g offense after a finding of guilt — only a jury can recommend probation after conviction at trial. This pushes many indecency cases into either a plea bargain (where the State can agree to deferred adjudication, which is not technically a finding of guilt) or a jury trial (where the jury holds the keys to probation eligibility). Deferred adjudication under art. 42A.101 remains available at the judge's discretion, but it carries its own risks — most notably that a violation triggers an open-range adjudication where the judge can sentence within the full punishment range.[3]
Sex-offender registration is the most consequential collateral consequence and follows the prong distinction precisely. Indecency by contact is classified under CCP § 62.001(5)(A) as a "reportable conviction" requiring lifetime registration under § 62.101(a)(1).[4] Indecency by exposure is a 10-year post-supervision registrant per § 62.101(c)(1). Registration imposes quarterly or annual in-person verification, residency restrictions (often barring residence within specified distances of schools, parks, and daycares — although the state-law restriction itself is limited, many cities and counties have layered municipal ordinances on top), employment restrictions on jobs involving children, internet-identifier disclosure obligations, and travel-notification requirements.
Parole eligibility on a 3g offense is half-time at minimum under Texas Government Code § 508.145 — meaning a defendant sentenced to 10 years on contact indecency would not be eligible for parole consideration until having served 5 calendar years. Time-credit calculation, good-conduct accrual, and parole-board discretion all operate within this floor. Sex-offender treatment programming (SOTP) at TDCJ adds further complexity — completion is typically required for favorable parole outcomes, and capacity issues can delay placement well into the sentence.
Defenses we evaluate first
Six defense doctrines do most of the work in Texas indecency cases: contact-element challenges under § 21.01(2), intent-to-arouse challenges, the Romeo-and-Juliet affirmative defense at § 21.11(b), outcry-witness reliability attacks, CAC-interview suggestiveness, and false-accusation theories in custody-dispute contexts.
The single highest-leverage move on the contact prong is a challenge to the "sexual contact" (§ 21.01(2)) element. The State must prove the touching was of an enumerated body part (anus, breast, or genitals) and was committed with intent to arouse or gratify. Incidental contact during caretaking activities — bathing, dressing, medical care, athletic spotting, comforting after injury — is not "sexual contact" within the statute even if the touching technically occurred at an enumerated body part. Texas courts have repeatedly required the State to prove a sexual rather than a caretaking purpose: see Bazanes v. State, 310 S.W.3d 32 (Tex. App.—Fort Worth 2010), reversing where the State's evidence on intent was conclusory. Caretaking-context defenses are particularly viable in stepparent, daycare, and athletic-coach prosecutions.
The intent-to-arouse element is the defense's second major attack surface, applicable to both prongs. Jurors are permitted to infer intent from conduct, but the inference is rebuttable. Defense counsel develops alternative explanations for the conduct — accidental contact in a confined space, medical examination, hygiene assistance, or in some cases, contact directed by the child themselves that the defendant did not encourage. Where the State's entire intent case rests on the complainant's narrative and an interrogation-room admission, scrutiny of both for suggestiveness and reliability becomes dispositive. The McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981), inference is rebuttable, not conclusive.
The Romeo-and-Juliet affirmative defense (§ 21.11(b)) is the most concrete statutory defense and applies only in narrow circumstances: the defendant was not more than 3 years older than the complainant, the complainant was 14 or older at the time, the conduct was not by force or threat, and the defendant was not a registered sex offender. All four prongs must be proved by the defendant by preponderance of the evidence. The defense is structured as an affirmative defense, not an element-negating defense — meaning the burden of proof shifts to the defendant — but it operates as a complete bar to conviction when proved. Counsel verifies birthdates, examines the relationship context for coercion indicators, and ensures the defendant's sex-offender registration history is clean before pleading the defense.
Outcry-witness reliability attacks under outcry witness (art. 38.072) target the State's primary evidentiary vehicle in most child-complainant cases. The State must give 14-day pretrial notice of the outcry, identify the witness and a summary of the statement, and submit to a Section 2 reliability hearing where the trial court evaluates whether the time, content, and circumstances of the statement provide sufficient indicia of reliability. Defense counsel attacks the predicate aggressively: the named "first adult" may not actually be the first, leading questions may have contaminated the statement, the witness may have a custody-dispute motive, and the time-and-content reliability factors may fail under Buckley v. State, 758 S.W.2d 339 (Tex. App.—Texarkana 1988).
CAC (Children's Advocacy Center) interview suggestiveness is a distinct attack from outcry. CAC interviews are typically video-recorded and conducted by trained forensic interviewers using a standardized protocol (often the NICHD or RATAC framework). Suggestiveness — leading questions, reinforcement of preferred answers, repeated questioning after initial denial, anatomical-doll cuing — undermines reliability. The interview video is reviewed frame-by-frame, with deviations from the protocol catalogued for cross-examination of the interviewer and potential expert testimony on forensic interviewing best practices. Where the interview is genuinely defective, suppression of the interview itself becomes possible, though the more common outcome is jury argument and expert rebuttal at trial.
False-accusation theories in custody-dispute contexts require careful development. Indecency allegations that surface for the first time during a contested custody, divorce, or visitation dispute warrant aggressive investigation into the timing and motive. Defense counsel obtains family-court filings, evaluates whether the allegation followed an adverse custody ruling, documents the complainant's and reporting parent's statements over time, and subpoenas any therapy records (with appropriate privilege handling). Rule 412 of the Texas Rules of Evidence limits introduction of prior sexual conduct of the complainant but does not bar evidence of prior false allegations by the complainant against others — a critical exception that requires careful pleading.
Common prosecution errors in indecency cases
The State's typical errors in Texas indecency-with-a-child prosecutions are predictable: defective CAC interviews, outcry-witness predicate failures, charging incidental contact as "sexual contact" without intent, weak corroboration, and prior-false-allegation discovery failures.
A recurring pattern across DFW indecency dockets involves defective CAC interviews. Children's Advocacy Center interviewers operate under written protocols that require open-ended questioning, neutral phrasing, and an explicit anti-suggestiveness discipline. Deviations — leading questions, reinforcement language ("good job"), repeated returns to denied facts, anatomical-doll prompts — are catalogued in the video record. Defense counsel obtains the unedited CAC video early in the case via Article 39.14 discovery and conducts a frame-by-frame review with a forensic-interviewing expert. Where the interviewer's departures from protocol are significant, the State's entire case can be reframed around interviewer-induced statements rather than spontaneous child disclosure.
Second, outcry-witness predicate failures under art. 38.072. The State must identify the first adult to whom the child made a statement; selecting a more articulate or favorable outcry witness (a school counselor or CAC interviewer) over the actual first adult (a parent or grandparent) is a recurring State error. Defense counsel investigates the chronology of who the child told first, when, and what was said. A failure of the first-outcry predicate makes the State's purported outcry witness's testimony inadmissible hearsay — typically catastrophic to the prosecution if the statement was the centerpiece. Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011), refined the analysis around what counts as a sufficiently detailed first-outcry statement.
Third, charging incidental contact as "sexual contact" without sufficient intent evidence. Prosecutors sometimes indict on contact that, while occurring at an enumerated body part, lacked the sexual-purpose element under § 21.01(2). Caretaking contexts — bathing, dressing, medical procedures, hygiene assistance, comforting an injured child — are statutorily exempt unless the State proves the actor's intent to arouse or gratify. When the indictment's factual narrative reveals a caretaking context with no independent evidence of sexual intent, a motion to quash or a substantive lesser-included instruction can substantially reduce exposure.
Fourth, weak corroboration. Texas does not require corroboration of a child complainant's testimony — the child's testimony alone is legally sufficient under Garcia v. State, 563 S.W.2d 925 (Tex. Crim. App. 1978). But weak corroboration affects jury persuasion even where it does not affect legal sufficiency. Defense counsel scrutinizes the State's asserted corroboration — medical findings, eyewitness accounts, prior consistent statements, digital evidence — for genuine independence from the complainant's narrative. Most "corroboration" turns out on examination to be repetition of the complainant's own statements through different reporting channels rather than independent evidence.
Fifth, prior-false-allegation discovery failures. Rule 412 limits introduction of the complainant's prior sexual conduct, but it does not bar evidence of prior false allegations by the complainant against others. The State sometimes fails to disclose known prior false allegations during Article 39.14 discovery — a Brady violation under Brady v. Maryland, 373 U.S. 83 (1963). Defense counsel issues specific written discovery requests targeting prior allegations, CPS contacts, and family-court testimony, then litigates production aggressively. A documented prior false allegation, properly admitted, can be case-dispositive.
What to do if you're accused of indecency with a child
The first 15 days are decisive: do not give a statement, retain counsel before any police interview, preserve digital evidence, avoid all contact with the complainant and their family, and document any custody-dispute context if applicable.
Five things matter in the opening days of an indecency investigation. First, do not give a statement to police, CPS, or any "fact-finding" investigator. Indecency-with-a-child investigations almost always begin with a request for a "quick conversation" from a detective or CPS caseworker. There is no benign version of this conversation: anything said becomes a party-opponent admission under Texas Rule of Evidence 801(e)(2) and is admissible at trial. The Fifth Amendment privilege applies from first contact forward; invoke it explicitly and request counsel before any interview, including informal phone calls. Innocent denials get distorted; partial admissions get reframed; refusing the interview is universally the right call.
Second, retain counsel before any pre-charge interview. Many indecency investigations include a "pretext call" — a recorded call from the complainant or a family member, set up by police, intended to elicit admissions. Counsel intervenes before the pretext call, instructs the client on how to respond if contacted, and shuts down the police interview track immediately. Once a pretext-call admission is captured, the case becomes substantially harder to defend regardless of the underlying merits. The cost of waiting is asymmetric: defense counsel can be retained in days; an admission captured on a recorded line cannot be retracted.
Third, preserve all digital evidence. Indecency cases frequently involve text messages, social-media DMs, photos, video calls, or shared-app messaging (Snapchat, Instagram, TikTok). Counsel issues litigation-hold letters to relevant platforms and preserves the client's own devices through forensic imaging. Spoliation — even unintentional spoliation through automatic deletion settings or routine phone upgrades — can support adverse jury instructions or exclusion of defense exculpatory evidence. Preservation must happen in the first week, not after the first court setting.
Fourth, avoid all contact with the complainant and the complainant's family. Even neutral or apologetic contact is misinterpreted, recorded, or weaponized in the State's narrative. Where the defendant lives with the complainant (stepparent, household member, family relationship), counsel coordinates with the court and CPS for orderly residence transitions that comply with any bond conditions while preserving the right to family reunification later in the case. Contact through intermediaries (a third-party family member, a mutual friend, social media) is equally dangerous and equally subject to bond-condition violation findings.
Fifth, document any custody-dispute context immediately. If the allegation surfaced during or in proximity to a contested custody, divorce, or visitation matter, the chronology becomes critical defense evidence. Counsel obtains family-court pleadings, prior CPS records (with appropriate privilege handling), and any statements made by the reporting parent in family-court proceedings. A documented pattern of custody-leverage allegations supports a false-accusation defense theory and can be developed across discovery, cross-examination, and expert testimony on coached or coerced child statements.
DFW-specific context (Collin, Denton, Dallas, Tarrant)
Each DFW county handles indecency-with-a-child cases through specialized CAC coordination and dedicated child-abuse prosecution units. Plea-bargaining latitude varies sharply by county; suppression and outcry-reliability litigation are central everywhere.
Collin County operates the Children's Advocacy Center of Collin County (CACCC) in Plano, where forensic interviews and medical exams are coordinated. The Collin County District Attorney's Office maintains a Crimes Against Children Division with dedicated prosecutors and victim-witness coordinators. The county's 3g charging posture is typically firm — open negotiation of contact-prong reductions is rare unless the suppression record is strong or the outcry predicate fails. The Collin County district courts hear indecency cases, with sentencing patterns reflecting the conservative jury composition of the county. Bond conditions almost always include no-contact orders, GPS monitoring, and restrictions on residences near schools or parks.
Denton County coordinates with the Children's Advocacy Center of Denton County in Lewisville, with similar prosecutorial structure under the Denton County DA's Crimes Against Children Unit. Denton's prosecutors have historically shown moderate willingness to negotiate prong reductions (contact to exposure) when defense counsel develops a strong suggestiveness record on the CAC interview or a credible outcry-predicate challenge. Sentencing varies: probation outcomes on the exposure prong are achievable with strong mitigation and jury-recommended probation in trial cases. The Lewisville and Denton court divisions handle most indecency dockets; cases tend to move steadily but not quickly.
Dallas County operates one of the largest CAC operations in the state through the Dallas Children's Advocacy Center (DCAC) downtown. The Dallas County DA's Crimes Against Children Division includes specialized SVU prosecutors and a dedicated trial team. Dallas prosecutors are more willing than Collin to consider deferred adjudication on indecency cases, particularly the exposure prong, when defense counsel has built a substantive motion record. The county's larger and more diverse jury pool can support better defense outcomes at trial than Collin or Denton. Bond conditions track the standard 3g pattern but are sometimes more individually tailored at magistration.
Tarrant County coordinates child-abuse cases through Alliance for Children (the county's CAC) and the Tarrant County Criminal District Attorney's Office Crimes Against Children Unit. Tarrant's charging and plea-bargaining posture sits between Dallas (more flexible) and Collin (firmer). Counsel here invests heavily in CAC-interview review and outcry-predicate litigation, with prosecutors responsive to well-developed challenges. The Tarrant County District Courts handle indecency cases out of the Tim Curry Justice Center; sentencing varies significantly across the panel, making jury selection and venue-specific knowledge an outsized factor in trial strategy.
Cost and outcome expectations
A realistic Texas indecency-with-a-child defense costs $15,000-$50,000+ in attorney fees, plus expert costs ($5,000-$25,000). Cases resolve in 8-18 months on average. Outcomes range from dismissal to lengthy TDCJ sentences depending on prong, evidence, and posture.
Defense fees vary substantially by case complexity. A straightforward indecency-exposure case with a clear suggestiveness defense and one complainant typically runs $15,000-$25,000 flat-fee. A contact-prong case with multiple counts, a contested CAC-interview record, and substantive motion practice runs $25,000-$40,000. Cases that proceed to jury trial — fully prepared with forensic-interview expert, mental-health expert, and contested suppression hearings — run $40,000-$75,000+. Federal interlock with state indecency charges (rare, typically arising from interstate transport or online conduct) can push fees substantially higher. ALR-style limited-scope representation is not applicable to felony sex-offense cases.
Expert witness costs are a major budget line. Forensic interviewing experts (typically licensed psychologists or LPCs with CAC protocol expertise) run $5,000-$15,000 for case review, deposition or hearing testimony, and trial. Mental-health experts evaluating the defendant or the complainant range $4,000-$12,000. Digital forensic experts for cases involving devices, social media, or video chat run $3,000-$10,000. Investigators (often retired law enforcement or licensed private investigators) typically run $3,000-$8,000 for witness location, scene work, and background investigation on complainant family. Bond costs (sex-offense bonds run high — typically $25,000-$100,000+, with 10% bondsman premium) are separate from defense fees.
Timeline expectations: most indecency cases resolve in 8-18 months from indictment to disposition. Pre-indictment investigation (where counsel is retained before arrest) can add 3-6 months. Cases with contested CAC-interview challenges, multiple complainants, or extensive digital evidence routinely extend to 18-24 months. Trial-track cases push to 18-30 months with appellate review extending well beyond. Plea or deferred-adjudication resolutions typically happen at the third or fourth pretrial setting once the motion record is complete and the State has assessed evidentiary weaknesses.
Outcome distribution is difficult to generalize because indecency cases turn heavily on prong, evidence quality, complainant credibility, and forensic-interview reliability. Typical outcomes in DFW counties cluster as follows: a smaller fraction (under 10%) resolve by outright dismissal — generally driven by outcry-predicate failures, recantation, or post-investigation CPS findings that disprove the allegation; roughly a quarter resolve by deferred adjudication (often on the exposure prong, where 3g restrictions still apply but final conviction can be avoided); roughly a third resolve by plea to the original or a reduced charge with probated or TDCJ sentence; roughly a fifth resolve by jury trial with mixed outcomes; and the remainder fall in miscellaneous categories (pretrial diversion in rare cases, mental-health-court tracks, juvenile-court referrals for minor defendants). The single largest financial and life lever is the deferred-adjudication-vs-conviction-vs-acquittal decision tree — registration tier and felony-conviction status drive collateral consequences for decades.
Collateral consequences include sex-offender registration (lifetime or 10-year), residency restrictions that vary by city and county, employment exclusions on jobs involving children, internet-identifier disclosure obligations, professional-license actions for teachers/healthcare/finance/legal, immigration consequences including likely deportation for non-citizens under 8 U.S.C. § 1227(a)(2)(E) and § 1227(a)(2)(A)(ii), and family-court custody and visitation impacts. The total collateral cost frequently exceeds the criminal-case cost by orders of magnitude. Pre-plea calibration of which disposition produces which collateral footprint is the most important strategic exercise in indecency-defense planning.
